Monthly Archives: April 2018

Representing the BBA in DC at ABA Day 2018

Each year, representatives from state and local bar associations across the US gather in Washington, DC, for a couple of days of advocacy on behalf of some of the American Bar Association’s top priorities.  Last week, BBA President Mark Smith, of Laredo & Smith, and President-Elect Jonathan Albano, of Morgan Lewis & Bockius LLP, joined their counterparts from the Massachusetts Bar AssociationChris Sullivan and Chris Kenney, respectively—on another whirlwind tour of the Capitol, visiting the offices of 10 of the Commonwealth’s 11 US Senators and Representatives as part of ABA Day.

Although our group had to split up in order to fit all those meetings in, we did get to sit down with both our Senators, Elizabeth Warren and Ed Markey, and Representatives Katherine Clark, Bill Keating, Joe Kennedy, and Jim McGovern.  We also saw staffers for Congressmen Mike Capuano, Steve Lynch, Seth Moulton, and Richard Neal.

This year, we focused our presentations on four main topics:

  • LSC funding

As always, the federal appropriation for civil legal aid, through the Legal Services Corporation (LSC), was at the top of our list.  LSC is the largest source of funding for providers nationwide: There is not a county in the US that is not covered by an LSC-funded agency, and here in Massachusetts, they fund the Volunteer Lawyers Project, South Coastal Counties Legal Services, Northeast Legal Aid, and Community Legal Aid—for a total of about $5.5 million this year.

The $1.3 trillion budget deal reached in Congress earlier this year increased LSC’s line-item, for the first time in years, from $385 million to $410 million.  Even at that level, however, legal-services providers remain woefully under-resourced.  Our request, on behalf of the ABA, was for an increase to $482 million in the coming fiscal year.  That would at least get LSC, and its grantees, back to where they were nine years ago.

LSC enjoys wide and deep bipartisan support in Congress—evidenced by that $25 million increase they received for the current fiscal year, in the face of a White House proposal to defund and shut down LSC’s operations entirely—and our delegation is unanimous in their strong support.  Yet the fiscal climate in DC makes almost any funding increase a challenge, no matter how worthy the cause.

 

  • Criminal-justice reform

This issue was on the ABA’s agenda two years ago, when momentum finally seemed to be growing for bipartisan agreement in Congress.  Since the 2016 election, though, there has been little action, if any, on this front, and the ABA didn’t make it one of their two priorities for ABA Day 2018.  But we chose to add the topic because we believe Massachusetts’ recently-enacted law can be a model for federal action—especially given the overwhelming support it had in the Legislature from both parties.

Our message to the elected officials was that Congress should take a comprehensive approach to reform, including bills that have ABA support on bail reform, sentencing, and juvenile justice.  Taking a piece-meal approach, to first tackle the low-hanging fruit would risk prematurely ending the debate for the foreseeable future by taking the heat off Congress.  What we heard back was that there may be an appetite to pick this issue up again after this fall’s mid-term elections—depending on the outcome.

 

  • Public Service Loan Forgiveness

In 2007, the federal government created the Public Service Loan Forgiveness program, designed to assist with student-loan repayment for those who work at least 10 years at a qualified public-service job.  Now, just as the program is beginning to pay back public-sector/non-profit employees who signed up at the outset and have been making timely payments ever since, it is under threat of cut-backs or even elimination.

Lawyers—who graduate with average debts of $88,000 for public schools or $122,000 for private schools—face some of the most-daunting challenges in considering whether to start their careers in public service.  But our case for the program extends as well to other professionals, such as teachers, first responders, and social workers.  And the program benefits not only those individuals, but their employers, too, since it can be difficult to attract talented applicants to these relatively low-paying jobs.  Of course, society as a whole stands to gain from measures such as this, to encourage students to acquire needed skills and then apply them in public service.

 

  • Immigration Orientation Program

This fourth item was a last-minute addition to our agenda, after the White House announced, just the previous evening, the suspension of a successful program to help applicants navigate the complexities of our federal immigration system.  The program helps to streamline the process and has demonstrated its cost-effectiveness, with the most-recent analysis finding a saving of $17 million as a result.  Nevertheless, as we heard from Rep. Kennedy, anything related to immigration is toxic these days in Washington.

 

A separate part of ABA Day involves the presentation of the Justice Awards, to recognize the work of members of Congress in advancing issues of critical importance to the ABA and the administration of justice.  This year’s event could only be a bit of a let-down from last year, when our own Rep. Joe Kennedy was one of the recipients, but it was still a treat to hear from House Democratic Leader Nancy Pelosi and Pennsylvania freshman Rep. Brian Fitzpatrick.  Leader Pelosi, the former Speaker, was introduced as the highest-ranking female elected official in American history, but said she couldn’t wait to lose that distinction.  She went on to talk about the importance of lawyers in our system, and about her pride that her daughter is one herself.

Rep. Fitzpatrick, a former FBI agent, joked (we think) that he’d left a job where he knew his colleagues would take a bullet for him for one where the opposite is true.  He also tied his belief in civil legal aid for the poor to his Roman Catholic faith, quoting Jesus saying, “Whatever you do for the least of these, you do for me.”  (Although they could not attend the award ceremony, Senate Majority Whip John Cornyn of Texas and California Senator Dianne Feinstein were also honored.)

We’ve said this before, but it bears repeating: We are blessed in Massachusetts to be represented by a delegation that shares these priorities—and, especially, understands the importance of civil legal aid.  Unlike attendees from other states, we were there at least as much to thank those we met with for their continued support as to persuade them on our issues.

—Michael Avitzur
Government Relations Director
Boston Bar Association

 

 

Massachusetts Legislature Passes Sweeping Criminal Justice Reforms

This week, the State Legislature passed the most-sweeping reforms of the Massachusetts criminal-justice system in decades.  The bill (technically, two bills) is now before the Governor, who has ten days to decide whether to sign the legislation into law, veto it, or send it back to the Legislature with recommended changes.

The BBA, which has advocated for changes in several key areas, will be sending a letter to the Governor, urging him to sign the bill into law—in particular, those reform measures that were recommended by our own criminal-justice working group in their No Time to Wait report last October.

Here are some of the main provisions in the bill that the BBA had proposed:

  1. Increase opportunities for pre-trial diversion for more defendants
  • Expands the eligibility criteria for pre-trial diversion to include a wider population of offenders.
  • Amends the CORI laws to permit the removal of offender’s successful completion of pretrial diversion from publicly accessible CORI reports.

2. Adopt significant reforms to the Massachusetts cash bail system

  • Requires that, generally, cash bail should not be ordered unless a defendant can in fact afford to pay the bail set.
  • Follows the emerging national model of pre-trial services reform by:
    • developing programs to minimize unnecessary pretrial detention,
    • reminding defendants of upcoming court dates using modern messaging approaches, and
    • requiring annual reports with aggregated data.
  1. Repeal mandatory minimum sentences, particularly for drug crimes
  • Repeals mandatory minimums for seven non-violent offenses.
  • Limits applicability of the school-zone law, and its mandatory minimum, to cases involving guns/violence/threats, kingpins, or minors.
  1. Ensure that ordering payment of multiple fines and fees does not effectively criminalize poverty
  • Makes more fees waivable and standardizes waiver language across fees.
  • Eliminates:
    • indigent counsel fee for defendants under 18 years of age,
    • parole fees for the first year, and probation fees for the first six months, after release from incarceration, and
    • counsel fees for cases of non-payment.
  • Bars incarceration solely for non-payment of money, or if such a person is not represented by counsel for the commitment proceeding and allows for alternatives to incarceration solely for non-payment of a fine.
  • Increases the monetary credit with which people can “work off” their criminal justice debt when confined for non-payment from $30 to $90 per day
  1. Reassess CORI laws
  • Reduce the time period for defendants to wait to seal records of conviction, from 10 years to 7 years for felonies, and from 5 years to 3 years for misdemeanors.
  • Allows expungement of non-serious cases up to age 21.
  • Require Courts and the Probation Department to seal automatically cases dismissed prior to arraignment or pursuant to a statutory diversion program.

In addition, the bill contains language creating a stream-lined process for post-conviction relief for individuals that were arrested and convicted of certain offenses while under the control of a trafficker, which the BBA separately endorsed.

We ask you to join the BBA in urging the Governor to sign the bill and preserve these much-needed evidence-based reforms, to make our justice system fairer and more effective.

Meanwhile, even if the bill is enacted, our work in this field is not finished: You will note that, in spite of the BBA’s long-time opposition to mandatory minimums in general—and our report’s proposal to at least start by eliminating all such sentences for drug offenses—the bill preserves those misguided provisions for higher-level crimes.  We will continue to support efforts to go further toward full repeal in future legislative sessions.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Files Amicus Brief in U.S. v. Brian Joyce

This week, the BBA filed an amicus brief in the case of U.S. v. Brian Joyce on the issue of the government’s motion to disqualify Joyce’s defense counsel. This move has generated a great deal of alarm in the legal community for its potential to significantly interfere with the attorney-client relationship, a bedrock of the fair administration of justice.

Drafted by President-Elect Jonathan Albano, of Morgan Lewis, the BBA brief argues that the Government’s motion to disqualify defense counsel should be denied on both Sixth Amendment and First Amendment grounds, honing in specifically on the First Amendment issues of the right to petition the government and an attorney’s right to speak publicly on behalf of a client.

Case Background

In December 2017, former state senator Brian Joyce was indicted on federal charges for using his office for personal gain, including racketeering, honest services fraud, extortion under color of official right, and conspiracy to defraud the IRS. In February 2018, the government moved to disqualify Joyce’s defense counsel, Howard Cooper, who has served as Joyce’s counsel for a number of years, including during the Massachusetts State Ethics Commission’s investigation, the U.S. Attorney’s Office’s investigation, and in the current case before the District Court.

The government argues that Joyce used Cooper to make several material and false representations to the Ethics Commission and the press, which Joyce intentionally meant to conceal his ongoing criminal conduct that is now the subject of the criminal charges. As a result, the government claims that Cooper has become entangled in Joyce’s cover-up and the perpetuation of the conduct, making him a percipient witness in the case, and requiring his disqualification. The government does not put forth any evidence that Cooper knew the information relayed to him by Joyce was false.

The Brief

The brief begins by noting the BBA’s “strong interest in protecting the sanctity of the attorney-client relationship and in safeguarding the constitutional right of lawyers to advocate on behalf of their clients.” Indeed, we have a long history, stretching back decades, of speaking out on these issues as intervenor and amici.

Over twenty years ago, we intervened at the District Court level and later participated as amici when it made its way to the First Circuit Court of Appeals, in the case of U.S. v. Klubock, 832 F.2d 649 (1986). There, we voiced our support for the ability of a district court to use its supervisory powers to adopt a local rule that would require prosecutors to seek prior judicial approval before serving a grand jury subpoena upon an attorney, for the purpose of obtaining evidence about the attorney’s clients. The First Circuit ultimately agreed that adoption of such a rule was a “sound use” of the court’s supervisory powers, noting the implication of due process and the right to counsel of choice under the Sixth Amendment.

Since then, we drafted and joined many briefs that address the importance of attorney-client privilege and the First and Sixth Amendment rights implicated in the attorney-client relationship, including, most recently, a brief in Commonwealth v. Wade. There, we expressed grave concern when a trial court interpretation of a statue would have required counsel to reveal confidential communications protected by the attorney-client privilege. In this brief we noted that “[t]he attorney-client privilege is critical to the proper functioning of the criminal justice system in Massachusetts. Safeguarding the attorney-client privilege is thus a vital concern for the BBA.”

Given this long history, we felt it necessary to respond to the government’s motion to disqualify Joyce in this case, which, as mentioned, has caused a great deal of alarm raised serious concerns across the legal community in recent weeks. A brief filed by the Massachusetts Academy of Criminal Defense Lawyers, the Massachusetts Bar Association, and the ACLU of Massachusetts, and others expounds on the Sixth Amendment right to counsel implications of the matter. Our brief acknowledges these concerns and hones in on another important right implicated: the First Amendment right of all attorneys to petition the government and to speak publicly on behalf of clients.

You can read the full brief here.

To summarize, the BBA brief posits that the government’s contention that defense counsel in a criminal prosecution can be disqualified, and attorney-client privilege lost, if the lawyer makes allegedly false statement in a submission to a state agency even in the absence of evidence that the lawyer knew the statements were false when made, would violate well-established constitutional protections of the right to petition the government. The First Amendment provides that “Congress shall make no law…abridging…the right of the people…to petition the Government for a redress of grievances,” a right commonly exercised through counsel.

The defense counsel’s presentation of his client’s defense to the Ethics Commission was a protected form of petitioning activity, a protection that extends to statements that are not made with knowledge of falsity, as it is recognized that some false statements will be inevitably covered in order to protect speech that matters. The government’s theory, however, would require that defense counsel guarantee the truth of factual assertions from the client, which would raise serious barriers to the attorney-client privilege and strain the right to petition. The brief provides:

 …the free flow of information between defense counsel and the government promotes the administration of justice. Imposing significant new barriers to pre-charging advocacy – such as the fear that an innocent misstatement will result in disqualification – would be both unconstitutional and contrary to the public interest.

In sum, without proof that a lawyer knowingly shared false information on behalf of the client, the Petition Clause of the First Amendment does not allow for the government to disqualify counsel solely because they repeat the defense.

The brief also addresses the First Amendment protections of a lawyer’s statement to the press on behalf of a client, as the government’s motion to disqualify also relies on the defense counsel’s allegedly false statements to a newspaper reporter investigating Joyce’ s conduct. Here, the brief highlights the Supreme Court case Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), where the Court held the First Amendment protects attorney speech about pending cases and can only be punished upon a showing that the speech will cause a substantial likelihood of materially prejudicing an adjudicatory proceeding. As a result, without evidence that defense counsel knew the information provided was false, the disqualification of counsel for publicly disclosing a client’s position on a matter of public concern would infringe on the First Amendment protections afforded attorney’s statements to the press.

We are grateful to have had the opportunity to weigh in on this matter, so critical to the BBA as an association of attorneys. And we are especially grateful of the significant efforts put forth by drafter Jon Albano, who had this to say about the brief:

We believe the government’s motion threatens the constitutionally protected right of a lawyer to present a client’s defense to courts and to government agencies. A lawyer should not be disqualified for presenting a client’s side of a case when there is no evidence that the lawyer knew the client was not telling the truth.

We will be following the disposition of the motion closely and will update this space with new developments. In the meantime, click here to learn more about our past amicus advocacy.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Submits Letter in Response to New Policy on Prison Visits

Last month, BBA President Mark Smith submitted a letter to the Executive Office of Public Safety and Security (EOPSS) expressing concerns with the new Department of Corrections policy on prisoner visits currently under consideration. The policy would require visitors to be approved and limit the number of individuals allowed to visit, with those in maximum security being permitted to have no more than five names on their preapproved visitors list, inmates in medium security being permitted to have no more than eight, and inmates in minimum security being permitted to have no more than ten. Incarcerated individuals will be allowed to revise their visiting list twice each year.

The letter expresses an understanding of EOPSS’ efforts to improve safety and reduce substance use in prison and jails, where substance use and addiction rates remain high. However, it also highlights that “[r]esearch clearly indicates that prisoners benefit substantially from the ability to maintain familial, social, and community ties while incarcerated, and thus the opportunity to visit with relatives, friends, community leaders, and others is critical to improving their chances to successfully and productively re-integrate into society upon release.”  The letter concludes by seeking a few answers, including the rationale behind the decision to limit the opportunity to change a visitor list to only twice a year, the data and research that was the basis of the new policy, and the specific additional benefits the new policy achieves above the current mandatory search policies.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association